Karsten Schubert (1961–2019)

Collecting contributions on European/a bit of American copyright law as applied to “high art,” mostly visual art; a bit of a time capsule, and a number of essays that just summarize the law, but some good tidbits. Anne Barron’s work is always worth reading; she discusses the historical lack of any particular theory in adding protected classes of works to the list of copyright subject matter. This led to difficulty in maintaining aesthetic neutrality along with anti-monopoly principles: once sculpture became more than casting and forming, ordinary industrially-made articles also seemed like “sculpture” and thus protected by copyright. But this conflicted with competition policy. Courts retreated to an undefined requirement that the creator be an “artist” with an artistic intent. The resulting contradictions, she suggests, are internal both to Modernism and to copyright: the avoidance of subjective artistic preference in copyright law leads to technical, materialist terms to define subject matter, but that in turn leads copyright to include “ordinary items which have little claim to creativity (which contradicts copyright’s actual purpose of facilitating fair competition in markets for goods incorporating intellectual creations by defining limited property rights in those creations)” but excludes some art from protection entirely “(which contradicts the rhetorical claim that copyright’s purpose is to encourage the progress of the arts).” I also enjoyed Anthony Julius’ closing discussion of various kinds of “art crimes,” especially the way that “Authors both need, and are mistrustful, of their audiences. The relationship between authors and audiences is thus one of unhappy mutual dependence. Intellectual property law intervenes to institutionalise that unhappiness.”… (mer)